Latest
A legal guide to enforcing costs orders made by the Family Court
When a legal matter concludes, a judge might order one party to cover the legal fees of the other, with a costs notice. Although recovering these costs from the unsuccessful party can be challenging and confusing, understanding the process and knowing your rights can make it manageable. With the right approach, you can successfully navigate this situation with confidence.
By Stefanie Costi, Lawyer at Watts McCray.
So what are your options for recovering costs orders made by the Federal Circuit and Family Court of Australia?
In this blog, we will break down the basics of costs notices and orders and how to go about getting your money back in regards to enforcing costs order made by the family court.
What is a costs order?
A costs order is a decision made by the court about which party should pay for the legal expenses incurred during a case. In family law matters, typically each person bears their own costs. However, there are some circumstances in which the Court will order one person to pay some or all of the other person’s legal costs via a costs notice.
Which costs can you recover?
Typically, this includes the money you paid to your lawyer, any expenses related to your case (e.g. barrister or expert fees), and other expenses associated with the legal process.
How much money can you recover?
The amount you can recover often depends on your specific circumstances and the outcome of your matter. For example:
Party/Party costs
If the judge orders the other side to pay your legal fees (called party/party costs), you will only receive some of your total expenses back. These costs are meant to compensate you for the reasonable legal costs you had during the case, but they will not cover the entire solicitor/client costs you incurred.
Indemnity costs
If the other side acts unreasonably during the legal process, you might get awarded indemnity costs. This allows you to recover all your legal fees, even if they are higher than the usual costs. Indemnity costs are meant to be a strong deterrent against unruly behaviour in court.
How can you recover a costs order?
If a judge has ordered that the other side must pay your costs, you have two main methods to get your money back:
Talk and agree
Start by having a conversation with the other side. See if they are willing to comply with the costs notice. If they agree, you will not need to take further action.
Enforce the costs order of the family court
If the other side fails to make payment, you may need to take legal steps to retrieve your money.
Here is what you can do:
- If you require information about their financial circumstances, issue them a written notice to provide a Financial Statement, or apply to the Court to obtain an order that they complete one.
- Enforcement warrant for seizure and sale of property: You can apply to the court for an order directing the Sheriff’s office to visit the person who owes you money, take property owned by them, and sell it to pay the debt they owe you.
- Third Party Debt Notice: This is when you ask the court to instruct a third party (e.g. the bank or employer of the person who owes you money) to deduct a specific amount of money from the person’s bank account or pay check and give it to you to settle their debt.
How long do these processes take, and what is the cost?
They differ in terms of the time they take and their associated costs. Before proceeding, it’s important to seek legal advice to ensure you’re making the best decision for your situation. Having professional guidance can provide clarity and peace of mind during this challenging time.
How long do I have to enforce a costs notice?
This will depend on the state or territory in which you reside and the terms of the costs order.
You can find more information on the Court’s website.
